The lobbying game

The growth of lawyers using lobbying skills in the legislative process and some of the mechanics of lobbying

The Journal, November 2005, page 26

Legislative change is squarely in the spotlight. With new environmental, consumer and employment legislation and new rules for the financial services industry, in recent years there have been unprecedented levels of legal and regulatory change. Against this background, lawyers are increasingly combining the traditional practice of law with public policy expertise to ensure a powerful outcome in the development of law and procedure.

A successful partnership

Lobbying is the direct engagement with policymakers and legislators, educating and informing the debate on change to obtain the best possible business results. Lawyers have realised that using public policy or lobbying skills is an effective way of achieving influence in such debates. Since much can be lost when a lawyer has to turn to an external party to obtain an explanation of the particulars of an issue, developing public policy skills is a natural progression. The number of law firms in the US and in Europe who have built up successful and powerful lobbying practices highlights this progress. Lawyers in the UK, both in-house and in private practice, are following suit and are using lobbying skills in relation to proposals such as the Department of Trade & Industry initiative, Taking of Company Security Interests.

The key suspects

The Scottish Executive, Whitehall and Canary Wharf are all candidates, but with as much of 70% of the UK’s rules and regulations emanating from the European Union it is vital to engage with Brussels, one of the global hubs of policymaking. With the enlargement of the European Union to 25 member states, the Brussels policymakers become ever more powerful and it becomes ever more urgent to understand what European Union institutions want and need from commercial organisations.

Levels of engagement

Engagement with policymakers and legislators can involve two stages or levels. The first level involves contributing to the debate at the initial conceptual stage where potential change is intimated through relationships with policymakers and legislators. Pre-consultation market research is also sometimes undertaken to test whether policy ideas will fly. The first level provides a valuable opportunity to influence policy before it appears for formal consultation.

This point is underscored by comments made in an article in the Financial Times on 12 September 2005 by Sir David Arculus, chairman of the Better Regulation Task Force (an independent advisory body set up in 1997 with the aim of removing red tape). “A lot of the business effort comes too late”, he said. “A lot of proposals coming out of Europe are predictable… and often business reacts rather too late… It needs to be there when proposals are being developed.” He goes on to say: “Business tends to want something to critique, and by that time it really is too late. It needs to be there much earlier.”

The second level of engagement involves a formal consultation process, where the principles behind the policy may not be capable of change, but lobbying can mitigate some of the impacts and lawyers can engage constructively to shape the overall solution.

Lobbying alone or with others?

Lobbying can be done on an individual basis as an organisation and/or in conjunction with other bodies including trade organisations that share similar goals. It is important to create valuable working partnerships with affected parties. Beware however of the mantra “what works for one party will also work for all”. Industry or trade associations can sometimes have diverging goals, and conflict can arise when industry members have differing attitudes to a particular issue.

Why lobby?

Involving those being regulated in the design of regulations is not just about good practice; it also makes for better, more effective legislation and avoids the pitfall of unintended consequences. Sir David Arculus in a Better Regulation Task Force report dated 22 September 2005 stated: “Good consultation needs to be given a higher priority. It not only makes for better laws, it also helps connect the EU to its people.”

A proactive role

Having forged an easy alliance between law and public policy, lawyers now need to be more proactive at identifying those opportunities on which to lobby. Lawyers also need to be quicker at identifying emerging change and to be prepared to engage at an early stage. The European Commission has offered a golden opportunity in its programme focusing on simplifying and updating the existing 80,000 page body of European Union legislation. The Commission has made strides in its willingness to consult and has established a precedent in asking member states, businesses and the public to tell it where red tape and over-regulation can be cut. The consultation runs until the end of December.

Marina Paul, Legal Director, HBOS plc